Icon Water Limited v The Owners Units Plan No. 711 and No. 725 (Appeal) - [2015] ACAT 56

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

ICON WATER LIMITED v THE OWNERS UNITS PLAN
No. 711 & No. 725 (Appeal) [2015] ACAT 56
AA 14/54 from XD 13/1016
Catchwords: APPEAL – Civil Dispute – nuisance application – whether ICON Water Limited as successor of ACTEW owned sewerage pipe in easement – Owners of Units Title never advised of ownership of sewerage pipe - whether ACTEW accepted ownership of pipe – whether ICON Water Limited responsible for blockage occurring in sewerage pipe

Legislation
cited:ACT Civil and Administrative Tribunal Act 2008 s 82
ACT Civil and Administrative Tribunal Procedure Rules 2009
(No 2) s 21
Canberra Sewerage and Water Supply Regulations 1933 (ACT) (as in force on 2 January 2001)
Building and Services Ordinance 1924 (ACT) to 10 May 1989
Building and Services Act 1924 from 11 May 1989
Water and Sewerage Act 2000

List of Texts/
Papers cited: Guidelines on Engineering and Environmental Practices Hydraulics
(GEEP)

Appeal Tribunal: Ms E. Symons – Presidential Member
Ms R. Creyke – Senior Member

Date of Orders: 21 August 2015
Date of Reasons for Decision: 21 August 2015

ACT CIVIL & ADMINISTRATIVE TRIBUNAL AA 14/54

(XD 13/1016)

BETWEEN:
ICON WATER LIMITED
Appellant

AND:
THE OWNERS UNITS PLAN No. 711 & No. 725
Respondent

APPEAL TRIBUNAL: Ms E. Symons – Presidential Member
Ms R. Creyke – Senior Member

DATE:21 August 2015

ORDER

The Appeal Tribunal orders that:
1.The orders made on 28 October 2014 by the original Tribunal for application XD 13/1016 are set aside.
2.In substitution, application XD 13/1016 is dismissed.

………………………………..
Ms E. Symons – Presidential Member
For and on behalf of the Tribunal

REASONS FOR DECISION

Summary of Appeal Tribunal decision

In these reasons the Tribunal hearing the appeal is referred to as the Tribunal and the tribunal which heard the decision under review is referred to as the original Tribunal.
The Tribunal decides that the original orders are to be set aside and, in substitution, the original application of The Owners Units Plan No. 711 and No. 725 (XD 13/1106) is to be dismissed.

Appeal

The issue in this matter is the ownership of a sewerage pipe.
The initial hearing in this matter took place before the Appeal President on 29 April 2014, 24 June 2014, 10 September 2014 and 28 October 2014.
In an oral decision given on 28 October 2014, the Appeal President decided in XD 13/1016 that ownership of a sewerage pipe located within the boundary of Bonython Estate 3B, Tuggeranong, Australian Capital Territory (ACT or Territory) had passed to ICON Water Limited as the successor of Australian Capital Territory Electricity and Water (ACTEW) Corporation. The relevant land through which the pipe is located is block 3, one of two blocks containing medium density housing – unit titles leased to Units Plan 725 (block 3) and Units Plan 711 (block 2). He made orders that ACTEW was responsible for cleaning and maintaining the subject line in block 3, but that the block 2 was responsible for maintaining its own sewer line. ACTEW was also to reimburse Units Plan 725 the amount of $1156.42 for monies spent clearing the line.
An application to appeal the decision of the original Tribunal was filed on 24 November 2014, and amended on 19 December 2014.
The grounds of appeal relied on in the amended application are that:
a)the original Tribunal erred in finding that the sewerage pipe had become part of ICON Water Limited’s sewerage network;
b)the original Tribunal erred in finding that the sewerage pipe was owned by ICON Water Limited;
c)the original Tribunal erred in finding that ICON Water Limited had a legal obligation to repair or maintain the sewerage pipe;
d)the original Tribunal erred in making findings based on documents which, when properly explained and interpreted in their true context, do not support the making of those findings;
e)The Owners Units Plan No. 711 and No. 725 had the burden of proving that ICON Water Limited was the legal owner of the sewerage pipe, and had failed to discharge this burden; and
f)the evidence before the original Tribunal did not support a finding, even applying the civil standard of proof, that ICON Water Limited was the legal owner of the sewerage pipe.

Appeal hearing

On 17 December 2014, pursuant to section 82 of the ACT Civil and Administrative Tribunal Act (2008) (ACAT Act), the Tribunal ordered that the amended application for appeal be dealt with as a review of the decision of the original Tribunal made on 28 October 2014.
The appeal was heard on 25 June 2015. Mr Dan Kynaston, Solicitor, of King & Wood Mallesons, appeared for the appellant. Mr David Bowditch, Director, ACT Strata Management Services appeared for the respondent.

Original Tribunal’s decision

The original Tribunal found that ownership of the sewerage pipe located within the boundary of block 3, Bonython 3B estate, which connected block 2 to the sewer main owned and operated by ICON Water Limited, had passed to ICON Water Limited and formed part of the sewerage network. The sewer pipe is located in an easement on the boundary of block 3 and was provided in order that sewage from the dwellings on block 2 could reach the mains network. On the basis of this decision, the original Tribunal found that ICON Water Limited had an obligation to maintain the sewerage pipe, including clearing any blockages that occurred in the sewerage pipe.
There are no written reasons for the decision but the transcript of the earlier hearings indicated that the original Tribunal relied principally upon an extract from a document mapping the location of sewerage pipes, prepared in 1993, known as the ‘Sewerage Book’. This document was annexed as Attachment D to a witness statement at the original Tribunal’s initial hearing.
The map showed a hard black line representing the sewerage line running from the main sewer through the easement connecting block 3 to block 2. In that map, the main sewerage lines were also shown in the same hard black line. By comparison sewerage lines within privately owned blocks were not represented with the same hard black line.
The original Tribunal also had evidence from two witnesses at the initial hearing, who were representing the Environment and Planning Directorate of the ACT. Those witnesses provided evidence of the ‘standard operating procedure’ adopted by Territory authorities in relation to approval of works undertaken by a developer, and, in particular, the certification required if sewerage lines on leased property were to become part of the public infrastructure.
That evidence was supported by a letter at the time of the initial development from an Assistant Secretary of the Land Development Branch, Office of Industry and Development to MBA Land Development Corporation (the developer). That letter stated:
As requested by the developer for the above project, the following enclosed documents are forwarded to you:
(a) certificate of practical completion relative to the stage two of the project issued by the Australian Capital Territory under the provision of sub-clause 5.1.1 of the deed of arrangement.
(b) the planning certificate for stage two for the project issued by the Australian Capital Territory.
The letter, according to the standard operating procedure, meant that the developer had met all the Territory requirements to service the blocks, including as to the sewerage lines within the block. Otherwise, the evidence was that no certificate of practical completion or planning certificate would have been issued.

Agreed facts

The following facts are not in dispute. This was confirmed at the appeal hearing on 25 June 2015.
The relevant land is in Bonython in the ACT. The land is designated as Bonython Estate 3B. The land was purchased by the developer at auction on 22 February 1988. The land was originally described as Block 1 Section 52 Bonython (block 1). The developer initially proposed to construct a development of low density ‘cluster housing’ on block 1.
As part of the initial development works for block 1, the developer was required to construct a sewer main which extended the sewerage network operated by ACTEW down to the northern boundary of block 1.[1] The construction of the sewer main was inspected and approved by ACTEW. Once approved, the sewer main constructed by the developer then became a part of the mains sewerage network.
[1] Appeal Book page 490 shows the proposed extension of the sewer main
The developer constructed the sewer main in accordance with approved plans.
On 18 July 1989, Gutteridge Haskins & Davey (GHD), the consulting engineers, planners, surveyors and project managers engaged by the developer, prepared a letter to ACTEW enclosing a field book providing ties[2] and depths information relating to an extension of the sewer main.[3]
[2]A tie is where the effluent from a block enters the sewerage system
[3] Appeal Book page 550
On 24 July 1989 ACTEW prepared a letter to GHD stating that, on the basis that the developer had accepted responsibility for any rectification works required by ACTEW, ACTEW’s requirements for the works had been met.[4]
[4] Appeal Book page 553
A certificate of operational acceptance was issued by ACTEW on 11 September 1989 in relation to the extension of the sewer main.[5]
[5] Appeal Book page 605
The developer subsequently formed the view that the development was not commercially feasible as it was originally proposed and sought approval to sub-divide block 1, in order to develop each of the new blocks separately as medium density, unit titled developments.
The sub-division of block 1 was approved by the estate manager in the Land Development Branch, Office of Industry and Development on 14 February 1990.[6] The land, previously described as block 1, was then divided into Block 2 Section 52 Bonython (block 2) and Block 3 Section 52 Bonython (block 3). Block 2 was to the south of block 3, but was slightly higher in elevation than block 3.
[6] Appeal Book pages 496-534
As part of the sub-division proposal that was approved on 14 February 1990, the developer was to connect block 2 to the stormwater and mains sewerage networks, by laying sewers and stormwater pipes through block 3, to the boundary of block 2.
The Lease Conditions and Development Requirements for the sub-divided blocks, approved on 14 February 1990, included a plan of block 2 and block 3 which showed a proposed 4 metre wide easement (described as a ‘Sewer & Water Drainage Easement’) which would allow access to the sewers and stormwater pipes connecting block 2 to the sewer main that had been extended by the developer to the northern boundary of block 3.[7]
[7] Appeal Book page 528
In the Crown Lease granted to the developer for block 2 on 28 February 1990,[8] an annexed Deposited Plan[9] also shows the ‘proposed sewerage and drainage easement’ running from north to south through block 3.
[8] Appeal Book page 535
[9] Appeal Book page 539
Despite the reference to the proposed easement in various plans of block 3, the lease conditions for block 3 and block 2 contain no reference to the easement. Importantly, the lease conditions do not specify in whose favour the easement was granted, and who was responsible to maintain the sewerage pipe.
Units Plan 711 was subsequently registered over block 2,[10] and Units Plan 725 was registered over block 3.[11]
[10] Appeal Book page 85
[11] Appeal Book page 86
The action commenced by the respondents concerns damage caused by a blockage which has occurred in the sewerage pipe which connects block 2 to the sewer main at the northern border of block 3. The blockage has occurred in an area of the sewerage pipe located within block 3.

Facts which are in dispute

The following facts are disputed:
(a)The owners of Units Plan 711 and 725 (Owners) contend that, following construction of the sewerage pipe by the developer, ACTEW must have approved the construction of the sewerage pipe and accepted it as part of the sewerage network. The owners contend that the ‘proposed easement’ referred to in the plans prepared by the developer must have been granted in favour of ACTEW.
(b)Icon Water Limited denies that ACTEW approved the construction of the sewerage pipe, and accepted the sewerage pipe as part of its network and says that there is simply no evidence of this.
(c)Icon Water Limited denies that the ‘proposed easement’ referred to in the plans was granted in favour of ACTEW.

Legislation

Section 79 of the ACAT Act relates to appeals within the tribunal. It states -
79Appeals within tribunal
(1)This section applies if—
(a)the tribunal has decided an application (the original application); and
(b)the original application was not an appeal from a decision by the tribunal.
(2)However, this section does not apply to an application for review of a decision under the Heritage Act 2004, the Planning and Development Act 2007 or the Tree Protection Act 2005.
(3)A party to the original application may, by application, appeal the decision to the tribunal on a question of fact or law.
Section 21 of the ACT Civil and Administrative Tribunal Procedure Rules 2009 (No 2) (the Rules) sets out the tribunal’s general powers, namely:
21Appeals to tribunal—general powers
For an appeal to the tribunal, the tribunal—
(a)has all the powers and duties of the tribunal that made the order appealed from; and
(b)may draw inferences of fact; and
(c)may receive further evidence about questions of fact, either orally in a hearing, by written statement or in another way; and
(d)may make an order confirming, amending or setting aside the order of the tribunal appealed from; and
(e)may make any other order it considers appropriate.
The relevant law is located in the Canberra Sewerage and Water Supply Regulations 1933 (Regulations), made under the Building and Services Ordinance 1924. These regulations were repealed by the Water and Sewerage Act 2000 section 51(2) on 1 January 2001, but were in force at the relevant times.
Regulation 6 provides that the owner of premises may apply to a certifier for approval of plans in relation to plumbing or drainage work to be carried out on the land. There is no provision in the Regulations for certification for approval of plans for services on private property which is to pass into public infrastructure. Regulation 6(4) provides:
6(4) A plan required by paragraph 3(d) shall include the following:
(a) The sewerage and drainage pipework;
…
(d) Shall specify the type of pipe material and the size and gradient of pipes to be used in the proposed plumbing or drainage work …
Regulation 7 provides:
7(1) A certifier shall not approve a plan unless the following approvals have been obtained:
(a) Approval from a network utility operator; …
(iv) where a new point of connection to the sewerage system or the water main is required – for the point …
(2) A certifier shall not issue a plan approval unless …
(a) The application complies with regulation 6;
(b) the approvals referred to in subregulation (1) have been obtained; …
(c) the proposed plumbing or drainage work complies with Australian Standard 3500….
Regulation 18 provides:
18. Connection with the sewerage system
A person who connects with or disconnects from the sewerage system a sanitary plumbing system, a sanitary drainage system or sewer shall ensure that all work is carried out in accordance with these regulations, Australian Standard 3500 and, except in the case of a single residential building, with the approved plan.

Contentions of ICON Water Limited

In summary ICON Water Limited contended as follows:
(a)The original proposal to develop block 1 required the developer to construct a sewer main from the northern boundary of block 1 to the main sewerage system.[12] At the time, such works had to comply with the Guidelines on Engineering and Environmental Practices Hydraulics (GEEP) which set out the Certification of Works by ACTEW where new works were to become part of ACTEW’s sewerage system. The GEEP was relevant to connections to the sewerage network in the ACT and applied until 1993.[13] Clause 12 provided that:
i.All new works which are to become part of the Canberra Sewerage System require a ‘Certificate of Design Acceptance – Sewer’ and a ‘Certificate of Operation – Sewer’, from [ACTEW] before these works will be accepted as part of the sewerage system.
(b)Following provision by the consulting engineers of ‘Ties and Depths’ information relating to the sewer main from the northern boundary,[14] ACTEW advised on 24 July 1989 that its requirements had been met and a Certificate of Operational Acceptance was issued on 11 September 1989 for the sewerage and stormwater works, subject to any rectification of works required.[15]
(c)On 23 April 1990 ACTEW issued a Certificate of Operation for the sewer and water supply hydraulic services,[16] stating that the works were ‘no longer in the defects and maintenance period’, a reference to the 11 September 1989 Certificate of Operational Acceptance which was subject to rectification of any defects, and that ‘responsibility for the maintenance of the works has passed from [GHD] to ACTEW’. This refers to the work connecting the internal service lines with the mains system.
(d)Although the Certificate of Operation was issued after the subdivision of block 1 on 14 February 1990, it refers to the location of the works as ‘Section 52 Block 1’ and makes no reference to blocks 2 and 3. The Certificate refers to drawings by Willing & Partners in 1986 (the 4771 series), predating the subdivision and showing only the extension of the sewer main to the northern boundary of block 1.[17] That was work required to be carried out by the developer but extended only from the northern boundary of block 1 to the mains system.
(e)There is no evidence that any Certificate of Design Acceptance or Certificate of Operation was issued by ACTEW in relation to the sewerage pipe.[18] Nor was there evidence that an application for any such certificates was made by the developer.[19] That was a strict process requirement under the GEEP.
(f)The application for a Final Certificate for the project dated 23 May 1995[20] annexes a number of certificates from relevant authorities, including the letter from ACTEW dated 24 July 1989,[21] and the Certificate of Operation issued by ACTEW,[22] none of which refer to the sewerage pipe. This supports the claim that no such certificate was ever provided in relation to the sewerage pipe.
[12] Appeal Book page 490
[13] Icon Water Limited’s Response in the original Tribunal [46]
[14] Appeal Book pages 550-552
[15] Appeal Book pages 605, 490, 557, 553
[16] Appeal Book page 472
[17]Appeal Book pages 489-495
[18] Transcript of Proceedings before the original Tribunal on 28 October 2014 page 51 lines 35-44
[19] Transcript of Proceedings before the original Tribunal on 28 October 2014 page 51 lines 35-44
[20]Appeal Book page 467
[21] Appeal Book page 553
[22] Appeal Book page 477
In addition, it was submitted that the reliance on the 1993 Sewerage Book, and in particular the fact that the sewerage pipe was shown on the map with a dark black line akin to the lines used for the mains sewers so as to raise an inference that the sewerage pipe was considered to be part of the mains network, was misplaced. That inference was contradicted by:
(a)ICON Water Limited’s digitised Sewer Network map[23] which does not reproduce that dark line for the sewerage pipe;
(b)the coloured copy of this map[24] which depicts the mains sewer line to the northern border of block 3 in red, while the sewerage pipe is in another colour, indicating, according to the legend that it was a “Non-ACTEW Service Line’;
(c)the screen shot of the Sewer Network[25] showing a commissioning date of 12 November 1991 for the sewerage pipe and indicating its ownership was ‘Other’; and
(d)sewerage books in 1998 and 2003[26] of the sewer mains system which do not show the sewerage pipe.
[23] Appeal Book page 79
[24]Appeal Book page 619
[25] Appeal Book 80
[26] Appeal Book 616-618

ICON Water Limited contends accordingly that the Owners have not met the evidentiary onus to demonstrate that ACTEW had approved the sewerage pipe, and had accepted it as part of the sewerage mains system.
As a consequence, ICON Water Limited contends that it does not now, and has never had, any ownership of, or responsibility for, the internal sewerage infrastructure located on block 2 or 3, Section 52 Bonython.

Contentions of The Owners Units Plan No. 711 and No. 725

Mr Bowditch, ACT Strata Management Service, representing The Owners of Units Plan No. 711 and No. 725, contended that the effluent from block 2 was to be carried through unplasticised polyvinyl chlorine (UPVC) pipes to a point marked H on the plans provided. There is a sewerage manhole at point H near the boundary of blocks 2 and 3 but inside block 3. From there, according to Mr Bowditch, the pipes were vitreous clay pipes, as are the mains sewer pipes. In his oral submissions he said that, point H ‘is the point where the responsibility of the ownership of block 2 now ceases and it becomes the responsibility of ICON Water’. He also contended that it is also evidenced by the upgrade of the sewerage pipe from UPVC to vitreous clay.[27]
[27] Respondent’s Submissions, 28 May 2015, page 2 [16]-[17]
In a further submission he said there was no mention of an easement on the Crown lease applicable to Units Plan 711 or Units Plan 725. The Certificate of Title (CT) for Units Plan 725, dated 5 December 1991 as included in the Register Book Vol 1214 Folio 86 refers to ‘the rights created by section 27 of the Unit Titles Act 1970 (ACT) and to the easements notified by memorial underwritten or endorsed on this Certificate of Title’. However, under ‘Memorial of Easements’ it states ‘Nil’. There were no specific clauses in the lease granting rights, which he argued would be expected if the developer was transferring an easement to private parties.[28]
[28] Transcript of Proceedings on 28 October 2014 page 67 line 40
He also submitted:
(a)that the easement was for the public utility ACTEW, since the easement benefited ACTEW by providing for the ‘public utility’s right to run stormwater and sewerage lines through another’s property’;
(b)as the sewerage pipe was in place and was being used, it must have met all standard requirements and by implication all approvals must have been granted;[29]
(c)that the two sewerage manholes on the original documents are shown in red on Territory land, one on each side of the easement and were the designated connection points to the mains;
(d)the sewerage pipes met the standard at the time for the public utility, and the caps on the easement met the standard at the time for the public utility;
(e)at the time (1988-1991) there was a lack of communication between the various sections in the department as to where responsibilities lay;
(f)it was clear that the person responsible for the preparation of the leases for blocks 2 and 3 accepted that the easement was for the public utility, otherwise the easement would have been shown in the lease documents;[30] and
(g)it was negligent of the Department of Territories not to have approved the easement, nor to register the easement.
[29] Respondent’s Submissions, 28 May 2015, 2 [15]
[30] Transcript of Proceedings on 28 October 2014 page 84 lines 20 and 40
Despite the absence of evidence that ACTEW had accepted responsibility for the sewerage pipe through block 3, Mr Bowditch submitted that this must have occurred and accordingly it is the responsibility of ACTEW’s successor, ICON Water Limited, as owner of the sewerage pipe in the easement, to pay for blockages which occur.

Consideration

The events under dispute in this appeal occurred on the cusp of self-government for the ACT, in the late 1980s. Block 1, Section 52 Bonython was purchased by the developer on 22 February 1988. At that time, over twenty five years ago, the transfer of the administration for the Territory was in a state of flux. As a consequence the parties have had difficulties obtaining documentation pertaining to the lease and development of the land.
That problem is not confined to documents held by the government; it applied equally to those of the developer. The initial development company was MBA Land Development Corporation, the principals being Mr Bob Winnel, and Mr John Kenworthy. The evidence at the original tribunal hearing was that the developer had destroyed all records as being outside any statutory holding period.[31] Mr Winnel said in giving evidence that he was relying solely on his memory of what occurred over a quarter of a century earlier. So the documentary or direct evidence in support of what occurred at that time is limited and existing documents are, at times, difficult to decipher.
[31] Transcript of Proceedings before original Tribunal on 28 October 2014 page 53
The matter concerns a blockage in a sewer pipe within the easement on block 3 which conducts sewerage from block 2. The blockage was about 21 metres south of ICON Water Limited’s main sewerage lines on Territory land. The blockage has been cleared. The issue is who should pay for the clearance. There is evidence that the bodies corporate for the units on blocks 2 and 3 have shared the cost. The contention, however, is that the blockage arose in a pipe in the easement and that pipe was under the control of the public utility. If that contention was accepted, payment should have been made by ICON Water Limited.
The Tribunal is satisfied that the CT for Units Plan 725 does not contain an easement. At the same time, under the Land Titles (Unit Titles) Act 1970, a copy of a site plan of block 3 does state ‘Proposed Sewerage & Drainage Easement 4 metres wide’. The site plan contains details of the 25 dwellings to be constructed on the land. The date of the site plan is not visible.
All the parties, and the Tribunal, accept that as part of the sub-division of the land, in order to connect sewerage and stormwater drainage from block 2 to the mains system, an easement had to be created through block 3 from the boundary of block 2 to the northern boundary of block 3. That easement was not registered, nor was reference made to it in the documents relating to the establishment of Unit Titles 711 and 725.
The absence of documentation and advice concerning the presence of the easement has disadvantaged all the parties. The Owners were not advised at the time they purchased their interests in the land of the presence of an easement containing a sewerage pipe nor of any responsibilities they might have in relation to the pipes running through the easement. As a consequence, they have not come to an agreement as to their respective responsibilities for blockages which occur in the sewerage pipe. Those blockages, in the event of a spill of effluent, affect the owners of block 3. At the same time, the benefit of the pipe is for the owners of block 2.
The failure to establish who owns the sewerage pipe has also impacted adversely on the Territory government, since it has been faced with lengthy litigation to decide the ownership of the sewerage pipe and hence the responsibility for payment for clearage of sewerage blockages.
Ultimately the dispute crystallised into two matters: first, a conflict as to which map referring to the sewerage systems should be accepted; and second whether the approval practices for acceptance of land developments at the time - the standard operating procedures - were followed.
The original Tribunal had preferred the 1993 pre-digitised map which showed the easement in a hard black line. That map was drawn closer in time to the approvals than other maps. A similar hard black line was used on that map for public infrastructure, namely, the mains sewerage system. Post-digital maps, however, showed the sewerage line in a colour used for internal sewerage networks.
Another map, Drainage Plan No 5486 Plan of Sanitary Drainage & Plan of Water Supply, Block 3, Section 52 Bonython, dated 18 November 1991, and marked as attachment ‘D’ to a submission of ICON Water Limited, contained a note stating: ‘8. Connection to existing main/manhole to be made by ACTEW at Contractor’s expense’.
The evidence of the Manager, Asset Acceptance and Protection, Environment and Planning Directorate, when asked about the discrepancy relating to the depiction of the sewerage pipe in the pre-digitised version was as follows:
… you’re suggesting … that it was always meant to be a sewer main under ACTEW’s control.
A. That’s one possibility. … Another alternative is that it was always intended to have been an internal service line and it was corrected along the line and that the current records are correct… Every record that I’ve seen that has attributes to this line indicates it was under the ownership of some other.[32] [33]
[32] Transcript of Proceedings before the original Tribunal on 28 October 2014 page 72, lines 30 and 40
[33] The reference to ‘other’ is shown on Attachment K, to Mr Taylor’s evidence. The full reference was ‘Tuesday, 12 November 1991, material clay, owner other’. This was a commissioning date
Accordingly, his understanding was that the line through the easement was a property service line and not an ACTEW internal main.[34] As he noted, the digital ACTEW reference shows a property service line in a different colour to that used for mains infrastructure, which relates back to a statement in 1991 which says it is owned by ‘Other’.
[34] Transcript of Proceedings before the original Tribunal on 28 October 2014 page 73, line 15
The Tribunal notes that the evidence based on the different maps remains equivocal. However, there is other evidence. Although there are no provisions in the Canberra Sewerage and Water Supply Regulations 1933 (ACT) relating to sewerage infrastructure which is to become part of the mains sewer system or public infrastructure the relevant Guidelines (the GEEP) at the time, established the process for water and sewerage works to be accepted as part of the network. Clause 12 of the GEEP stated:
All new works which are to become part of the Canberra Sewerage System require a ‘Certificate of Design Acceptance – Sewer and a ‘Certificate of Operation – Sewer’ from the Operating Authority before these works will be accepted as part of the sewerage system.
There is no evidence that a ‘Certificate of Design Acceptance – Sewer’ or a ‘Certificate of Operation – Sewer’ was ever granted to the developer, or the successors which purchased the leases to blocks 2 and 3 in 1991 for the sewerage pipe. Jackson Teece Chesterman Willis acquired block 2 on 4 February 1991, and Victory Homes Pty Limited purchased the lease for block 3 later in 1991.
What evidence there is follows:
(a)On 11 September 1989 a Certificate of Operational Acceptance, Sewerage & Stormwater was issued for Bonython Stage 3B. That certificate was conditional on meeting any defects liability. The evidence at the time indicated that this Certificate related to the work shown on Drainage Plan No 5486 Plan of Sanitary Drainage & Plan of Water Supply, Block 3, Section 52 Bonython, dated 18 November 1991 referring to the ‘8. Connection to existing main/manhole to be made by ACTEW at Contractor’s expense’. This was the connection from the northern boundary of block 3 to the mains sewerage system.
(b)An application was made by the developer on 12 September 1989 for a Certificate of Practical Completion and a Planning Certificate for Stage 1 of the project in accordance with the requirements of the Deed of Agreement dated 16 November 1988. In support, the Company attached, as relevant, Certificates of Operational Acceptance or Statements from Authorities with respect to acceptance of conduits including: ‘(a) ACTEW Certificate of Operational Acceptance for water reticulation, stormwater and sewerage works’ dated 11 September 1989.
(c)On 16 February 1990, the Office of Industry and Development, noted the request of 12 September 1989 and provided a Certificate of Practical Completion certifying compliance by the developer with the Deed of Agreement, and also provided the Planning Certificate for Stage 2 of the project.
(d)Evidence at the original Tribunal proceedings by the Deputy General Counsel for ICON Water Pty Limited, was that:
‘the practical completion to me says that the developer has serviced the blocks in accordance with the Territory’s requirements and running its water, sewer, stormwater, all the servicing requirements to the individual – being provided to the individual blocks, which would have included extending from the works as – the dead end in the works drawing on 125B.
On what basis do you say that? The Territory will only issue a lease if each block of land has its own service, independent service arrangement to public utilities and roads.
Yes. So do you have some documentation in relation to that? I can only be guided by this, because this is the documentation saying that the estate manager or the deed manager at the time had sighted the documentation, otherwise he should not have issued that practical completion certificate.[35]
(e)On 23 April 1990 ACTEW provided a Certificate of Operation Water Supply and Sewerage, referring to Plan number series 4771 showing the drains external to block 1. The Certificate contains no reference to any sewerage pipe internal to block 3, nor to any approvals relating to that sewerage pipe, but solely concerned the work required to be carried out by the developer under the initial Deed of Agreement to extend the sewer drain from the northern boundary of block 1 to the main system. The Certificate noted the works were ‘no longer in the defects and maintenance period’, a reference to the 11 September 1989 Certificate of Operational Acceptance which was subject to rectification of any defects. The Certificate also noted that ‘responsibility for the maintenance of the works has passed from [GHD] to ACTEW’. The references indicate that the works to which reference was made pre-dates the subdivision and refers only to the extension of the service lines from the northern boundary of the former block 1, to the mains system.
(f)On 23 May 1995 the developer applied, in writing, to the Environment & Land Bureau for a Final Certificate for the land and enclosed the Certificate from ACTEW (Water and Sewerage) dated 23 April 1990.
(g)On 5 September 1995, the Final Certificate was issued by the Environment & Land Bureau, Land Supply Branch to the developer certifying that it had complied with the requirements of the Deed of Agreement, dated 16 November 1988.
(h)There is no evidence that any Certificate of Design Acceptance or Certificate of Operation was issued by ACTEW in relation to the sewerage pipe.[36] Nor was an application for such certificates made by the developer.[37]
[35] Transcript of Proceedings before the original Tribunal on 28 October 2014 pages 22-23, lines 30-40
[36] Transcript of Proceedings before the original Tribunal on 28 October 2014 page 51lines 35-44
[37] Transcript of Proceedings before the original Tribunal page 51 on 28 October 2014 lines 35-44
The evidence at the original Tribunal hearing was that there was no evidence that the sewerage pipe had been accepted at any of the three points at which it would normally be done.[38] As that evidence indicated if the developer had ‘wished ACTEW to maintain that sewer, then there would have been some consultation and there would have been correspondence that mirrored the external services’.[39]
[38] Transcript of Proceedings before the original Tribunal on 28 October 2014 page 52
[39] Transcript of Proceedings before the original Tribunal on 28 October 2014 page 57 line 5
The evidence of Mr Bob Winnel, was that his manager handled the Bonython 3B development. However, he said:
…Normally, if we’re doing a unit title development… the internal servicing is our responsibility, and the external services are provided to the boundary. [T]hat’s normal. I have no specific recollection of the development of these two blocks other than that we changed one block into two and we provided an easement from the upper block to the lower block to the ACTEW sewer. We don’t recall whether we actually provided that sewer, whether ACTEW did it or not. … [W]e just don’t have a recollection … because it was 1989 [and] it was only the second development that we did.[40]
He also said: ‘… normally ACTEW would resist taking responsibility for something internal to our blocks’.[41]
[40] Transcript of Proceedings before the original Tribunal on 28 October 2014 page 60 lines 25-30, 40
[41] Transcript of Proceedings before the original Tribunal on 28 October 2014 page 64 line 25
Evidence at the initial hearing from witnesses representing the Environment and Planning Directorate, provided evidence of the ‘standard operating procedure’ adopted by Territory authorities in relation to approval of works undertaken by a developer, and, in particular, the certification required if sewerage lines on leased property was to become part of the public infrastructure. That certification is shown in Clause 12 of the GEEP.
The Owners rely on an inference that the absence of any reference to the easement in the leasehold documents on the Certificate of Titles for Units Titles 725 and 711 indicate that the owner must be ICON Water Limited.
Against the inference, the Tribunal is satisfied that there was simply a failure by the authorities to note the easement on the Certificates of Titles for the two blocks. That finding is supported by the need for compliance with the GEEP requirements at the time if a sewerage pipe or other services were to be accepted as part of the public sewerage mains infrastructure. There is no evidence that the requisite Certificates were ever sought or provided.
In addition, the evidence of Mr Winnel was that it would have been unusual for ACTEW to take responsibility for an internal sewerage line, and this would usually have been resisted.
There was a standard operating procedure at the time, involving the steps set out in the GEEP. That standard operating procedure had not been followed in relation to any process for obtaining the certificates required by clause 12 of the GEEP for the sewerage pipe.
This contrasts with the compliance with standard operating procedure to connect block 1 to the mains sewer. Those steps had been taken, as evidenced by the provision of the certificates indicating that the developer had complied with all the requirements to connect block 1 to the mains sewer and that ACTEW had specifically accepted that these works became part of the public infrastructure. There is no such equivalent approval process for the sewerage pipe through block 3.
The Tribunal is not able to comment on the significance of the composition of the sewerage pipe – whether vitreous clay or UPVC - since there was insufficient evidence to establish the composition of the sewerage pipe through the easement.
In addition, the Tribunal accepts the evidence before the original Tribunal that the line in the easement was built to NSW plumbing standards, not ACTEW standards which was another indication that it was not an ACTEW asset. The ACTEW standard is for building mains and the other standard is for building internal pipe.[42]
[42] Transcript of Proceedings before the original Tribunal on 28 October 2014 page 58 line 25
While the Tribunal takes note of the hard dark line on the 1993 Sewerage Book map, the Tribunal is satisfied that the alternative evidence comprising the post-digitised maps, the evidence of officials that had the sewerage pipes become part of the public mains system, this would have been indicated on the digitised and other maps in a particular form and this is not shown, and the absence of any documentation approving the pipe and accepting it as part of public infrastructure, is compelling.

Conclusion

For the reasons set out above, when all of the evidence is considered, the Tribunal is satisfied that there was not sufficient material upon which it was reasonable for the original Tribunal to reach its conclusion. The Tribunal finds that the evidence before the original Tribunal did not support a finding, even applying the civil standard of proof, that ICON Water Limited was the legal owner of the sewerage pipe. It follows that the orders made by the original Tribunal which required the appellant to reimburse the Owners Units Plan No. 725 for costs incurred in cleaning blockages in the line and to be responsible for cleaning and maintaining the line should not have been made.
The Tribunal is satisfied that each of the grounds of appeal is made out.
Accordingly, the Tribunal sets aside the orders of the original Tribunal and substitutes an order that the original application is dismissed.
………………………………..
Ms E. Symons – Presidential Member
for and on behalf of the Tribunal
HEARING DETAILS

FILE NUMBER:	AA 14/54
PARTIES, APPELLANT:	Icon Water Limited
PARTIES, RESPONDENT:	The Owners Unit Plan No. 711 & No. 725
SOLICITOR APPEARING, APPELLANT	Mr D. Kyneston
REPRESENTATIVE APPEARING, RESPONDENT	Mr D. Bowditch
SOLICITORS FOR APPELLANT	King & Wood Mallesons
REPRESENTATIVES FOR RESPONDENT	ACT Strata Management Services
APPEAL TRIBUNAL MEMBERS:	Ms E. Symons, Presidential Member Ms R. Creyke, Senior Member
DATES OF HEARING:	25 June 2015